Tag Archives: privacy

The Absurd Consequences of a “Right to Privacy”

English: Privacy Fence custom built by Nice Fence.
English: Privacy Fence custom built by Nice Fence. (Photo credit: Wikipedia)

British MP David Davis’s text messages poking fun at the appearance of a female colleague make him the latest whipping boy for those determined to root out sexism and misogyny in public life, the Daily Mail reports. Curiously, they also make him the latest poster boy for exponents of an expansive “right to privacy” like Brendan O’Neill of spiked magazine.

I’m not sure how Davis’s text messages — in which he denied attempting to kiss MP Diane Abbot because “I am not blind” — became public. The Daily Mail doesn’t say. Perhaps the recipients talked about them. Perhaps his phone was hacked.

If the latter, there are certainly moral and legal aspects of the matter which bear at least tangentially on privacy.  But O’Neill takes those aspects far beyond the realm of the reasonable. He asserts a general ethical constraint along the lines of the legal “fruit of the poison tree” standard under which evidence illegally obtained cannot be used in trials, but on steroids.

“That Davis’s texts were leaked,” writes O’Neill, “doesn’t make it okay to haul him over the coals for them, to insist that he retract and repent, because this still amounts to shaming someone for a private conversation.”

Under O’Neill’s standard of personal behavior, you cannot allow something that you learn about me to affect your opinion of me or your behavior toward me in any way if I did not intend for you to be aware of it.

If I’m a Christian clergyman and a parishioner catches me praying in the Islamic manner, or engaged in sexual congress with a woman not my wife, when he barges into the parsonage uninvited, well, he should just keep his mouth shut about it — and even if he doesn’t the congregation certainly shouldn’t  discharge me or ask their denomination to defrock me. After all, that would be a violation of my privacy!

That’s absurd.

A number of rights do, in effect, protect personal privacy. The rights of free speech and free press include the right to refrain from speaking or publishing if there’s something I don’t want to tell you. Property rights mean that I can bar you from my house and knowledge of what goes on there absent a warrant issued on probable cause to believe I’ve committed a crime. It’s proper that information gained in violation of those rights be excluded from criminal proceedings, if for no other reason than to discourage police from violating those rights.

But personal and public opinion aren’t court proceedings such as those referred to by Edward Coke when he said (as quoted by O’Neill) “no man, ecclesiastical or temporal, shall be examined upon the secret thoughts of his heart, or of his secret opinion.”

Nor is there a “right to privacy” — a right to forbid other people to know things — as such. Privacy is merely an effect, an imperfect intersection of penumbrae emanating from other rights.

Like the European Union’s “right to be forgotten,” O’Neill’s “requirement to forget” is illiberal and Orwellian.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION HISTORY

Strong Crypto: An Offer in Compromise for President Obama

President Barack Obama talks with FBI executiv...
President Barack Obama talks with FBI executives after a speech during a visit to FBI headquarters. (Photo credit: Wikipedia)

For months, US president Barack Obama played coy on the developing controversy over law enforcement bureaucrats’ demands that American tech innovators be required to build “back doors” into their products. That changed on March 11. In a talk at the Austin, Texas SXSW Interactive festival, Obama warned against “an absolutist view” of individual privacy and strong encryption.

“[I]f your argument is strong encryption, no matter what, and we can and should, in fact, create black boxes,” said Obama, “then that I think does not strike the kind of balance that we have lived with for 200, 300 years. And it’s fetishizing our phones above every other value.”

Weirdly citing the unconstitutional institution of local DUI checkpoints on our roads and the US government’s barbaric post-9/11 practice of subjecting air travelers to sexual assault by Transportation Security Administration employees in the nation’s airports, Obama appealed to the American tradition of “compromise” to support his argument. All, of course, while averring that he is “way on the civil liberties side of this thing.” With civil liberties friends like Barack Obama, who needs civil liberties enemies?

With apologies to the late Barry Goldwater, absolutism in defense of individual privacy and strong encryption is no vice, nor is moderation in their defense a virtue.

But if President Obama really is interested in a compromise, I guess I’m willing to offer one. It begins with four words:

You first, Mr. President.

In 2008, you promised Americans “the most transparent administration in history.” You’ve since not just failed to deliver on that promise, but taken things in exactly the opposite direction.

Your administration has denied or redacted parts of more Freedom of Information Act requests than any since the Act became law in 1966.

Chelsea Manning languishes in a military prison, Edward Snowden lives in exile, Julian Assange remains trapped in Ecuador’s embassy in London, and numerous other whistleblowers have been imprisoned or otherwise persecuted, all for the “crime” of telling us things about the US government that you didn’t want us to know.

You’ve even assumed the power to order American citizens assassinated — while refusing to let the rest of us know who they are or why you had them killed.

In theory, YOU work for THE REST OF US. Since when does the employee get to read the boss’s email on demand, but not vice-versa?

So show us you’re serious. Start with pardons for Manning and Snowden and an end to the pursuit of Assange. Then start fulfilling instead of denying FOIA requests. And the thing with murdering people? That needs to end, completely, permanently.

Get on those things, then we’ll talk. But I’m going to go ahead and predict that this isn’t the kind of “compromise” you meant.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Prosecutors, Police Get Medieval on Privacy and Progress

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Ashley Carman of The Verge reports on the opening of a new front in American politicians’ war on personal privacy and technological progress: Legislators in California and New York have introduced bills  requiring the makers of smart phones sold in their states to intentionally compromise those phones with “back doors” for law enforcement.

Those two states are the test markets for a national — even global — effort backed by the National District Attorneys Association and the International Association of Chiefs of Police. The ultimate goal of that effort is a repeal of the last 600 years of human history, at least where personal privacy and technological progress are concerned.

There are so many things wrong with the proposal that I simply can’t cover them in detail here. The short version:

First, “back doors” in high-tech products cannot be created in a way that only allow law enforcement to access information on the basis of lawful warrants citing probable cause. Any device so compromised is inherently vulnerable not just to state actors (who can’t be trusted to act lawfully) but to run of the mill criminals — hackers, identity thieves and so on.

Secondly, the strong encryption genie is out of the bottle and has been for decades. If Californians and New Yorkers can’t buy uncompromised phones in California and New York, they’ll buy those phones elsewhere. If such phones aren’t legally available  anywhere, those of us who value our privacy will simply procure add-on software or hardware that encrypts our data before it ever enters the compromised systems.

Finally, and most importantly, understand that the backers of this outrageous legislation are NOT your friends. Their goal is not to protect your life, liberty or property. Their goal is to maintain and expand their power over you. And this makes them and their ideas very, very dangerous.

The only way to stop the use of encryption on computers and cell phones is to stop the use of computers and cell phones. If you don’t think these megalomaniacs are willing to do that, you aren’t paying attention. They’ve done it before, not just in openly authoritarian polities like Egypt, but right here in the US, albeit temporarily and in a very localized manner. That’s a matter of scale, not of principle.

As I wrote five years years ago when then US Senator Joe Lieberman proposed an “Internet kill switch” for “national security” purposes, “if the price of keeping Joe Lieberman in power is you staring over a plow at the a** end of a mule all day and lighting your home with candles or kerosene at night before collapsing on a bed of filthy straw, that’s a price Joe Lieberman is more than willing to have you pay.”

Some of the faces have changed, but the stakes haven’t. You can have your freedom, your privacy and the benefits of modern technology, or those who would rule you can have their “back doors.” But it’s one or the other. The two sets of values cannot co-exist.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY